Madhya Pradesh High Court
Bhartiya Kishan Sangh And Uttam Singh ... vs Union Of India (Uoi) And Ors. on 19 September, 2007
Equivalent citations: AIR 2008 (NOC) 1493 (M.P.) (GWALIOR BENCH)
ORDER Abhay Gohil, J.
1. This order shall govern the disposal of aforesaid two petitions. Both the petitions have been filed as Probono Publico Petition under Articles 226 and 227 of the Constitution of India.
2. Writ Petition No. 5303/06 has been filed by Bhartiya Kishan Sangh District Bhind for the relief that the Indian Council of Agriculture Research New Delhi (for short I.C.A.R.) was establishing a Krishi Vigyan Kendra (for short KVK) in the District of Bhind. Earlier location of this KVK was selected at Lahar, which is a Tehsil place of district Bhind and subsequently the department of Agriculture of State of M.P. has taken a decision to shift the location of KVK from Lahar to the District Headquarter at Bhind. This petition has been filed on the ground that the decision of State Govt. is perfectly legal and justified in shifting the sight of KVK from Tehsil headquarter to District Headquarter, therefore directions be issued that the construction work which is in progress of the KVK at district head quarter Bhind may not be stopped.
3. The second petition W.P. No. 5364/06 has been filed as PIL by the petitioner, who is a social worker and holding some office in Krishi Upaj Mandi Samiti Lahar District Bhind and in this petition prayer has been made that the order of shifting the KVK from Lahar to Bhind by order dated 12.9.2006 (Annexure P/1) be quashed and direction be given that the aforesaid KVK be established only at Lahar district Bhind.
4. In both the petitions, we have heard the learned Counsel appearing for the respective parties and also perused the documents. In the order dated 12.9.2006 (Annexure P/1 in W.P. No. 5364/06) passed by the Collector District Bhind, it has been mentioned that earlier there was a decision for establishing the KVK Centre at Lahar and for that purpose total 20.33 hectare land was reserved at Lahar and handed over to the District Planning Committee Bhind vide decision dt. 24.5.2003 and the same was transferred for the abovesaid purpose. Subsequently under the orders of M.P. Agriculture Department dated 5th March 2004, the decision has been taken to shift the aforesaid KVK centre from Lahar to Bhind and M.P. Seed Corporation Bhind has handed over its 20.144 hectare land to Jawaharlal Nehru Krishi Vishwavidyala Jabalpur and therefore on that basis the Collector has cancelled the allotment of 20.33 hectare land for KVK at Lahar as the aforesaid land was of Charnoi land, therefore it has further been declared by Collector that the land be treated as Charnoi Land.
5. Shri R.B.S. Tomar, learned Counsel for the petition in W.P. No. 5364/06 submitted that for establishing the centre at Lahar not only the land was allotted but funds were also allotted for construction and some construction was also raised, but in reply learned government and the learned Counsel appearing for petitioner as well as respondents in W.P.5303/06 submitted that no construction was raised at Lahar, only centre was established in old building and photographs of old building have been produced before this Court. Their submission is that the land of M.P. Seed corporation has been alloted for the centre at the District place at Bhind and money has been allotted and construction is also going on. They have also produced the photographs of the spot.
6. In reply, the stand of the I.C.A.R. is that before selecting side, the I.C.A.R. had appointed a committee to inspect the sight and on the basis of committee's recommendations they have selected Lahar where KVK centre should be established. It is further submitted that the ICAR has opposed the shifting of this KVK centre from Lahar to Bhind and still I.C.A.R. is opposing the establishment of such a centre at District Place Bhind. Shri T.C. Singhal, learned Counsel for the ICAR submitted that the ICAR has not released any fund for establishment of KVK at Bhind.
7. From the correspondence before us, it appears that there is a dispute between the I.C.A.R. and the State authorities. I.C.A.R. is insisting that the project should only continue at Lahar not at Bhind. Jawaharlal Nehru Krishi Vishwavidyala vide its letter dt. 25.8.2006 has informed the government that ICAR has already informed to the State Government that whatever the expenditure will come for running the KVK Centre at Bhind, that shall be borne by the State Government and the University has stopped the construction work of KVK with immediate effect. University has also written another letter dated 29.8.2006 to its Assistant Engineer for stopping the construction work of KVK at Bhind.
8. From the aforesaid letters it appears that there is serious dispute between the I.C.A.R. and the State regarding the shifting of the centre at Bhind. authorities. I.C.A.R. is insisting that the project should only continue at Lahar not at Bhind. According to Jawaharlal Nehru Krishi Vishwavidyala the construction work at Bhind has already been stopped. From this controversy it appears that ICAR is still opposing the shifting of KVK centre from Lahar to Bhind.
9. In this case while hearing the learned Counsel for the parties, the question before this Bench was that in such circumstances whether any writ can be issued and particularly whether writ of mandamus can be issued. There is no dispute that in this case only the administration directions are under consideration before us. Parties have not cited any legal breach or breach of legal and public duty. Thus, we have considered the question of whether in such a factual scenario writ of mandamus can be issued in this case.
10. The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court, directed to any person, corporation or inferior court, requiring him or them to do some particular thing therein specified which pertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right. The basis of mandamus is the existence of a right in the person concerned and a corresponding duty upon the respondent. The duty must be of public nature and not a matter of discretion. The mandamus does not lie for enforcement of a contractual right, even if one of the parties to the contract is a State. A writ of mandamus cannot be issued to enforce purely administrative instructions having no statutory force. The settled law behind issue of writ of mandamus is that ordinarily High Court will not issue a writ of mandamus directing the State to carry out its Statutory functions in a particular manner. "Normally, the Courts would ask the State to perform its statutory functions, if necessary within a time frame and undoubtedly as an when an order is passed by the State in exercise of its power under the statute, it will examine the correctness or legality thereof by way of judicial review".
11. The similar question was involved in the case of J.R. Raghupathy v. State of A.P. and Ors. , where the High Court interfered on location of 12 Revenue Mandal Headquarter and quashed the notification issued under Section 3(5) on the ground that the Government acted in breach of the guidelines in that one place or the other was more centrally located or that location at the other place would promote general public convenience, or that the headquarter should be fixed at a particular place with a view to develop the area surrounded by it. When the matter was challenged before the Supreme Court, the question was whether the guidelines are merely in the nature of instructions issued by the State to the Collectors regarding the manner in which they should promote their proposal for formation of Revenue Mandal or the guidelines were having statutory force or were mere departmental instructions meant for the Collectors and whether such a governmental function which was in the form of administrative decision was amenable to writ jurisdiction of High Court under Article 226 of the Constitution of India. While considering the question, Supreme Court considered the observations of Lord Denning M.R. in Laker Airways Ltd. v. Department of Trade 1977 QB 643 at p.705 to the effect:
The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers). The law does not interfere with the proper exercise of the discretion by the executive in those situations : but it can set limits by defining the bounds of the activity : and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our Constitution.
Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive. At several times in our history, the executive have claimed that a discretion given by the prerogative is unfettered : just as they have claimed that a discretion given by statute or by regulation is unfettered.... The two outstanding cases are Padfield v. Minister of Agriculture, Fisheries and Food 1968 AC 997, and Secy. of State for Education and Science v. Tameside Metropolitan Borough Council (1976) 3 WLR 641, where the House of Lords have shown that when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers to see that they are used properly and not improperly or mistakenly.
Supreme court has further held that -
The location of Headquarters by the Government by the issue of the final notification under Sub-section (5) of Section 3 of the Act was on a consideration by the Cabinet Sub-Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like Gram Panchayats and the general public, keeping in view the relevant factors. Even assuming that any breach of the guidelines was justiciable, the utmost that the High Court could have done was to quash the impugned notification in a particular case and direct the Government to reconsider the question. There was no warrant for the High Court to have gone further and directed the shifting of the Mandal Headquarters at a particular place.
It is well settled that mandamus does not lie to enforce departmental manuals or instructions not having any statutory force, which do not give rise to any legal right in favour of the petitioner. The law on the subject is succinctly stated in Durga Das Basu's Administrative Law, 2nd Edn. at p.144.
Administrative instructions, rules or manuals, which have no statutory force, are not enforceable in a court of law. Though for breach of such instructions, the public servant may be held liable by the State and disciplinary action may be taken against him, a member of the public who is aggrieved by the breach of such instructions cannot seek any remedy in the courts. The reason is, that not having the force of law, they cannot confer any legal right upon anybody, and cannot, therefore be enforced even by writs under Article 226.
Even though a non-statutory rule, bye-law or instructions may be changed by the authority who made it, without any formality and it cannot ordinarily be enforced through a Court of law, the party aggrieved by its non enforcement may, nevertheless, get relief under Article 226 of the Constitution where the non-observance of the non-statutory rule or practice would result in arbitrariness or absence of fairplay or discrimination, - particularly where the authority making such non-statutory rule or the like comes within the definition of 'State' under Article 12.
12. In case of Geep Flashlight Industries Ltd. v. Union of India , it was held that "No mandamus can go if there is nothing which is required to be done or forborne under the Act." In case of Umakant Saran v. State of Bihar , it was held that for issue of writ of mandamus it must be shown that the statute imposes a legal duty and the aggrieved party has a legal right under the Statute to enforce its performance." In case of D. Nagraj v. State of Karnataka , their Lordships of the Supreme Court were of the view that "It is only a person whose rights have been infringed who may apply for mandamus". In case of Scheduled Caste and Weaker Section Welfare Association v. State of Karnataka , the Supreme Court has held that in Public Interest Litigation where a member of the public, acting bona fide, moves the Court for the enforcement of a fundamental right on behalf of a person or class of persons who, on account of poverty or disability or socially or economically disadvantaged position, cannot approach the Court for relief, such member of the public is competent to invoke the jurisdiction of the Court." It was further considered in the case of Isha Beevi v. Tax Recovery Officer , that "No occasion for the issue of writ of mandamus can arise unless the applicants show non-compliance with some mandatory provision and seek to get that provision enforced because some obligations towards them is not carried out by the authority alleged to be flouting the law." Again in case of Bombay Municipality v. Advance Builders , it was held that "A writ of mandamus is not a writ of course or a writ of right, but is as a rule, a matter for the discretion of the Court. Recourse cannot to be allowed as an extraordinary remedy when it is not really needed. A writ of mandamus should never be granted unless some useful purpose will be served thereby. In other words the Court in its discretion may refuse mandamus to compel the doing of an idle act. In case of Shabi Construction Co. v. City & Industrial Development Corporation the Supreme Court has held that "A person can be aggrieved only when he has been denied a "legal right" by someone who has a legal duty to do something or to abstain from doing something." No writ or order in the nature of mandamus would issue when there is no failure to perform a mandatory duty. The element of public duty imposed upon it by law is the mandatory condition. Therefore, existence of legal right and public duty to be performed by either side coupled with statutory duties are the necessary ingredients for issue of writ of mandamus and not in policy matters or for the purpose of administrative functions.
13. In this case both the petitioners are asking for issuance of writ of mandamus. In this case we are hesitating to issue writ of mandamus because neither there is any violation of statutory rights nor legal rights or public duties to be performed by the respondents are involved, nor the petitioners are having any legal right which has been breached nor the petitioners could satisfy us about their legal rights in the matter. Both the petitioners have filed aforesaid two public interest litigation petitions in one, praying that KVK should be opened at Lahar and it has been wrongly shifted to Bhind and in another that when the same has been shifted to Bhind it be directed that it should continue at Bhind. It appears that there is some political dispute and we will not like to comment over such a dispute for which the parties have filed these two petitions.
14. The writ of mandamus can not be issued for the purposes in a policy matter that whether the particular KVK centre should be established at one place or other place. It is a policy matter and is within the discretionary power of the I.C.A.R. to establish a particular institute at a particular place looking to the various aspects of the matter. It is settled principle of law that mandamus can not be issued to enforce the executive policy or order, which has no statutory force nor against the policy decision and administrative decision that where a particular KVK should be established.
15. Therefore, in view of the aforesaid legal position when rival petitions have been filed to seek directions from this Court, this Court is not an expert body for such matters and various factors are required to be considered for establishing a particular body at a particular place, therefore, we are of the view that no writ of mandamus can be issued, but considering the dispute we hold that it is the only I.C.A.R., which is a agricultural research body and funding body of the project, fully aware about the advantage, need and circumstances, to take an appropriate decision in the matter. Therefore, we dispose of both the petitions with a direction to the I.C.A.R. to take appropriate decision in the matter considering the dispute between the parties as well as the other facts and circumstances necessary for establishment of a particular centre and also considering the further steps taken in this regard. Therefore, let the ICAR to decide the matter. We grant liberty to both the parties to file their respective representations before I.C.A.R. and I.C.A.R. will consider them and take appropriate decision in the matter.
16. With the aforesaid directions, both these petitions are disposed of. Security amount be deposited with the Legal Service Authority of High Court. No costs.